Judicious voice, drowned in a row

A separate note written by R. Basant in the 2005 judgment of the Kerala High Court in the Suryanelli case reveals a voice of empathy advocating to raise the age of consent for sexual intercourse from 16 to 18.

His may have been one of the first judicial voices leading to the introduction of the Protection of Children from Sexual Offences Bill.

The Bill, approved by the Union Cabinet in April 2012, proposes to do away with the age of consent. It says that any sexual relations with a person aged below 18 years is rape, regardless of whether it is consensual or not — a protection the law could not extend to the Suryanelli victim, who, according to the judgment, had crossed 16 years of age at the time of the alleged crime.

Justice Basant (as he was then) begins his two-page note with a comment that the Suryanelli case raises “few disturbing thoughts” about the age of consent.

He was the puisne judge on the High Court Division Bench led by Justice K.A. Abdul Gafoor which acquitted 35 accused on “benefit of doubt” in the case. One of the reasons pointed out in the January 20, 2005 verdict was that the victim allegedly gave consent to sexual intercourse. The acquittal was recently set aside by the Supreme Court.

Logic and reason

In his note in the 2005 judgment, Justice Basant questions the very “logic” behind allowing “a person aged less than 18 the right to consent to sexual intercourse.”

“To me, it rebels against logic and reason that a system which considers a person aged less than 18 years to be a child/minor, not competent to take major decisions affecting herself or others for the purposes of the Indian Majority Act, Contract Act, Juvenile Justice Act, Child Marriage Restraint Act, Representation of the People Act, should concede to such child the right to consent to sexual intercourse,” Justice Basant wrote.

He further expostulates in the note of how 16 as the age of consent escapes common sense.

“Marry, she cannot at that age even with the consent of her parents. But consent she can to sexual intercourse so long as she does not go out of the keeping of her lawful guardian!” Justice Basant said.

He points out how the Law Commission had attempted to raise the age of consent to 18 in its 84 report out of “concern and compassion which society should bestow on its younger members.”

He rues how, if Parliament had accepted the report of the commission, the High Court could have “ignored” the “consent for intercourse allegedly given by the victim on which aspect we have chosen to concede the benefit of doubt to the appellants (35 accused).”

“It is difficult for the child, not groomed in proper atmosphere with a proper value system inculcated in it, to resist such temptations. Such children can be termed deviants but cannot be merely condemned and left to their fate… They too deserve the protection of the law against unintelligent, imprudent and immoral consent being extracted from them at that early age,” Justice Basant wrote, urging the Kerala Legislature to take the initiative to increase the age of consent to 18.

He adds while concluding the note: “Wait, we must. But the process has to start here and now. Such unfortunate incidents like the one in this case, which seem to be too frequent in Kerala scenario of late, should not be viewed merely as god-sent opportunities for improving stakes in the electoral battles to follow. The purpose of this added note is just that.”

The Law commission mentioned in my earlier comment is not of 1984 but actually it is 'the 84th Report of 9th Law Commission in 1980'.

The said is to be read as:

R.Basant’s lament that he would have ignored the ‘consent of intercourse’ based on which the Suryanelli appellants (accused) were chosen to concede the benefit of doubt, had the Parliament did accept the said enhancement of age limit to 18 as advocated by the 9th Law Commission through its 84th Report in 1980,without delaying all these years is nothing but an attempt for an embellishment on the blemished verdict of Kerala HC! What is getting drowned in the row is not the judicious voice but malevolent voice!

from:
Madan Menon Thottasseri

Posted on: Feb 15, 2013 at 19:39 IST

What is getting drowned in the row is not the judicious voice but malevolent voice!

from:
Madan Menon Thottasseri

Posted on: Feb 14, 2013 at 17:53 IST

R.Basant’s lament that he would have ignored the ‘consent of intercourse’ based on which the Suryanelli appellants (accused) were chosen to concede the benefit of doubt, had the Parliament did accept the said enhancement of age limit to 18 as advocated by the Law Commission through its Report of 1984 without delaying all these years is nothing but an attempt for an embellishment on the blemished verdict of Kerala HC!

Let me give a quote from Kevin Vanhoozer’s “Is there a Meaning in This Text? – “Human beings are subject to all imperfections and distortions that characterize human fallenness”.

from:
Madan Menon Thottasseri

Posted on: Feb 14, 2013 at 17:44 IST

Let me reiterate that the raising the age of consent for sex from 16 to 18 years is based on the Bill approved by Union Cabinet in April, 2012 which terminate the ‘age of consent’ for minors who are above 16, but below 18. Accordingly any sexual relations with a girl or even a boy below age- 18 is considered as RAPE, regardless of whether it is consensual or not. It is to be noted that this protection of law cannot be extended to the Suryanelli victim who had crossed 16 years of age at the time of series of rapes, as elucidated by R.Basant. It is very unfortunate that R.Basant used the minor victim’s detrimental ‘age factor’ to the beneficial acquittal of 35 perpetrators who raped her; but still he is there to shed tears for her!

from:
Madan Menon Thottasseri

Posted on: Feb 14, 2013 at 17:40 IST

Here nobody is interested in facts & reality. Everybody, including media, interested only in sensationalism and how to utilise it for own benefit. Fishing in Muddy water. In India honesty has no value.

from:
George

Posted on: Feb 14, 2013 at 12:54 IST

It is very intetrsesting to find that justice basant had not gone into the merit of the case in his part of judgement. He is just concurring to other judge in one sentence. There are so many errors in Justice Abdul Gafoor's judgement. How could High court admit fresh evidence.? how could evidence of another criminal case be considered in favour of accussed in this case.? Did the high court overstepped its boundaries as an appellate court and allowed fresh evidences like a trial court where the victim had no chance to counter the arguments.? Justice Basant was a mute spectator to all findings in gafoors judgement... it is so easy to pass the blame to legislature. He was good in doin that... But the finding that a child of 16yrs and 3 months age willingly consented to have sex with 42 men in 40 days is not agreeable at all... and it raises too many suspicions